Foreign Trade and Customs Law

Global relationships with customers and suppliers are now part of day-to-day business for most companies. GvW Graf von Westphalen advises companies, forwarding agents, insurance providers and logistics service providers on all areas of foreign trade and customs law.

Our status as one of the leading German law firms in the field of foreign trade law has been confirmed once again in the JUVE Handbook of German Commercial Law Firms 2011/2012. We have also been named Law Firm of the Year for Trade & Customs by InterContinental Finance Magazine, an honor that was bestowed upon us as part of the publication’s annual Legal Excellence Awards.

In addition to customs issues, our specialized knowledge in the field of foreign trade and customs law encompasses antidumping and foreign trade, export control and sanctions, market regulation, state aid and subsidies,and WTO. Our tax advisers also provide assistance with any matters concerning VAT law and excise duties. We also possess industry-specific expertise in the fields of pharmaceuticals and health care, nutrition, electronics, new media, textiles and industrial facilities.

Our team offers advice on the drafting of contracts under civil law as well as on financing and securing payment. We represent companies and their senior employees in proceedings involving criminal offenses and monetary fines. With regard to preventative measures, we are also particularly active in the field of compliance consulting.

We represent companies in disputes before national authorities and the European Commission as well before tax courts and administrative courts up to the level of the European Court of Justice.

Foreign Trade

In addition to relevant EC law, the German Trade Law and the German Foreign Trade Regulation govern national foreign trade in Germany.

They regulate, in particular, the control and supervisory powers of customs agencies and the German Office of Economics and Export Control. This office has overall responsibility for the issuance of export licenses. 

The obligation to obtain a permit may also apply when third parties acquire companies in Germany by third parties.

The penal provisions and administrative fines of foreign trade law apply to infringements of statutory provisions.

We offer comprehensive advice on required licenses, permits and authorizations
  • in foreign-trade law compliance checks and potentially required adaptations of corporate processes to statutory requirements
  • in foreign trade audits and investigative proceedings
  • in appeals against penalties and fines
  • in investments of third-country companies and funds in Germany pursuant to §§ 7 Section 2 No. 6 of the German Trade Law, 53 of the German Foreign Trade Regulation, which may affect the interests of the Federal Republic of Germany, as well as in investments in defense contractors and cryptography-product manufacturers

Excise Tax Law

Sales and excise taxes are not fully harmonized within the EU. As a result, national regulations must be observed in cross-border transactions.
At the same time, sales taxes on deliveries of goods and services within the EU and with third countries are subject to special national regulations. Certain goods in commercial traffic (mineral oil, natural gas, electricity, tobacco, coffee, spirits and sparkling wine) are also subject to excise taxes.
The energy tax in particular has continued to gain importance in recent years. The respective excise tax laws provide for comprehensive tax duties, but also various tax exemptions, tax reimbursement and tax reduction options.

We advise and represent clients
  • in the examination of notices in waiver and reimbursement proceedings and in appeal proceedings before public officials and tax courts
  • in optimizing tax structures for cross-border transactions (in particular in serial transactions and triangular transactions under special consideration of the interfaces between customs and sales tax)
  • in dealings with officials and compliance with formalities, specifically registration obligations, tax returns and applications for corrections
  • issues related to the traffic of taxable goods, in particular possibilities for having duties suspended
  • quota trading of biofuels

Antidumping and Anti-subsidy Law

The imposition of antidumping duties is probably the most common as well as the most drastic measure taken to protect EU industries from allegedly unfair trade practices of third countries. When a third country itself intervenes in international competition by using export subsidies, antidumping duties can be imposed on imports from this country under the WTO Subsidies Agreement.

We advise affected companies and associations on antidumping and anti-subsidy proceedings, in particular regarding
  • Applications and contacts with the European Commission or national agencies
  • Investigative proceedings and "on-spot" visits in third countries by the European Commission or the European Antifraud Office
  • The filing of statements and the completion of the questionnaire
  • Hearings before the European Commission
  • Proceedings concerning the extension of antidumping duties due to alleged anti-circumvention, scope reviews as well as expiry reviews
  • Appeals of European Commission decisions, in particular concerning the imposition of preliminary or definite antidumping measures
  • Filings of objections against import duty notifications

Market Regulation

The EC common market organization regulates not only the production, but also the processing and trade in agricultural products and products derived from them. Responsibility lies with the European Commission, the German Office for Agriculture and Food (Bundesanstalt für Landwirtschaft und Ernährung - BLE), the main customs office of Hamburg-Jonas (for export reimbursements) as well as regional officials. Strict formality and procedural requirements regarding state aid and subsidies must be observed. Infringements are subject to sanctions.

We advise and provide representation, in particular in
  • applications for premiums, state aid, export reimbursements and export subsidies
  • implementation of risk management programs
  • Assistance with market-order audits:
  • defense against claims for repayment, interest claims and sanctions
  • litigation on test cases before the national courts and preliminary decisions before the European Court of Justice
  • assertion of civil damages claims against suppliers/customers

Export Controls and Sanctions

The export of dual use or military goods is subject to restrictions and normally requires a permit. There are also (partial) embargoes against certain third countries  which limit or prohibit the export of goods to those countries.
Finally, the EC Regulations No. 2580/2001 and No. 881/2002 prohibit business contact to all people and companies suspected of committing or supporting terrorism.

We provide advice and legal representation
  • in connection with the export-control review of export procedures and the establishment of appropriate company procedures (export control compliance)
  • in applying for export permits, clearance certificates and information about the export control list at the German Office of Economics and Export Control
  • in filing appeals against restrictive measures implemented by customs agencies and the German Office of Economics and Export Control

WTO

Agreements concluded in the context of the World Trade Organisation (WTO) (e.g., GATT, GATS, TRIPS, and the SCM Agreement) have an impact in EC law.

Non-discriminatory international trade is supposed to occur between WTO member states. In the case of violations, there is a specific dispute settlement process in which a binding decision about the conflict can be rendered. If consultations among the states fail, a state can be authorized to introduce antidumping duties on imports from third countries.

Knowledge of the content and types of actions under WTO law is absolutely essential when providing comprehensive advice on international trade matters.

We
  • examine the compatibility of national and EC law with international law
  • identify ways to enforce WTO law, in particular by involving (third) countries or the European Commission
  • advise and represent in WTO dispute settlement proceedings and Annex V proceedings

Customs

The import and export of goods are regulated by European customs law.

We advise and represent clients in all aspects of customs law before the national customs officials and the European Commission as well as before German and European courts. Our close working relationship with specialized law firms in other EU member states and third countries ensures that we can provide expert assistance there as well. In China, these matters are primarily handled by our office in Shanghai.

Our main areas of activity in this field include
  • customs permits and simplification, e.g., in applications for AEO status, the status of an authorized recipient, the licensing of customs warehouses or inbound processing arrangements
  • legal support in challenges against subsequent customs charges (third-country customs duties, antidumping duties, additional customs duties) customs classification of goods and determination of the correct customs value
  • determination of the origins of goods and utilization of tariff preferences
  • proceedings relating to waivers and reimbursements of import duties
  • customs compliance (customs compliance program, compliance report)
  • legal advice in tax audits and potential criminal investigations conducted by the national customs officials and the European Anti-Fraud Office ("OLAF")
  • enforcement of claims for damages and claims based on liability of public officials under civil law
  • cases of confiscation at the border